Penn et al v. Fidel et al

Filing
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Darrell Penn; Annise Penn,
Plaintiffs,
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vs.
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Ray Fidel, et al.,
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Defendant.
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No. CV 12-01260-PHX-FJM
ORDER
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The court has before it plaintiffs’ motion to vacate or modify arbitration award
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(doc. 1), defendants’ response (doc. 11), and plaintiffs’ reply (doc. 15).
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Plaintiff Darrell Penn was hired by DriveTime Automotive Group on November 22,
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2010.
The parties agreed to arbitrate any dispute arising out of their employment
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relationship. On December 9, 2010, after working at DriveTime for about 3 weeks, plaintiff
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attended a town hall meeting at DriveTime’s Mesa Operations Center. During the meeting,
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in front of the other attendees, DriveTime CEO Ray Fidel kissed plaintiff on the cheek.
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Plaintiff alleges that he was embarrassed and humiliated by the unwelcome contact and that
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afterwards he was teased by co-workers. Plaintiff quit his employment at DriveTime on or
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about December 21, 2010, when he left on a medical leave but never returned to work.
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Plaintiff then filed an action in state court asserting claims for, among other things,
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battery, sexual harassment, and retaliation in violation of Title VII, 42 U.S.C. § 2000e.
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Following a motion to compel, the claims were ultimately submitted to arbitration. After
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conducting a two-day hearing, the arbitrator issued his decision, concluding that the brief kiss
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on the cheek did not rise to the level of battery or sexual harassment, the co-worker teasing
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was not sufficiently severe or pervasive to alter the terms or conditions of plaintiff’s
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employment, and plaintiff had not established a claim for constructive discharge. Plaintiff
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now asks this court to modify or vacate the arbitrator’s award (doc. 1).
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We may vacate an arbitrator’s award only upon a showing that the award was
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procured by corruption or fraud, or the arbitrator was partial, corrupt, guilty of misconduct,
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or exceeded his powers or imperfectly executed them such that a definite award was not
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made. 9 U.S.C. § 10(a). We may modify or correct an award only if (1) there was a material
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miscalculation of figures, or in the description of any person, thing, or property referred to
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in the award, (2) the arbitrator awarded upon a matter not submitted to him, or (3) the award
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is imperfect in matter of form not affecting the merits of the controversy. Id. § 11.
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Plaintiff argues that the arbitrator inaccurately characterized testimony given at the
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hearing. In particular, he challenges the arbitrator’s statement that (1) “Penn testified that
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following the kiss incident, he was teased about it by several DriveTime employees that he
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knew from the time he had worked at Wells Fargo Bank,” (2) “Penn testified that when he
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asked the former Wells Fargo employees to stop teasing him, they did stop,” (3) “All of
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DriveTime supervisory or management employees who testified said they did not learn of
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Penn’s complaints until just before an email Penn sent on December 21, 2010," and (4)
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“While Penn asserted that he was grossly offended by Fidel’s act in kissing him, there was
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no evidence that Fidel would have known that Penn would be grossly offended.” Plaintiff
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contends that these findings of fact by the arbitrator are incorrect, that they do not conform
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to testimony that he gave, and therefore they demonstrate “misconduct” on the part of the
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arbitrator. Motion at 4. We disagree.
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Confirmation of the arbitration award “is required even in the face of erroneous
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findings of fact or misinterpretations of law.” French v. Merrill Lynch, Pierce, Fenner &
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Smith, Inc., 784 F.2d 902, 906 (9th Cir. 1986) (quotation omitted). An arbitrator’s decision
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must be upheld unless it is “completely irrational” or constitutes a “manifest disregard of the
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law.” Id. It was within the arbitrator’s authority to make factual determinations. Plaintiff’s
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disagreement with those determinations does not justify vacating or modifying the arbitration
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award.
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IT IS ORDERED DENYING plaintiffs’ motion to vacate or modify the arbitrations
award (doc. 1).
DATED this 5th day of November, 2012.
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